Marine and Coastal Access Bill [HL]

House of Commons

Session 2008 - 09
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Marine and Coastal Access Bill [HL]

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4
251

Variable monetary penalties: other sanctions
3
Provision under section 95 must secure that, in a case where a variable
monetary penalty is imposed on a person—
(a)
that person may not at any time be convicted of the offence in
relation to which the penalty is imposed in respect of the act or
5
omission giving rise to the penalty;
(b)
the enforcement authority may not issue a compliance notice to that
person in respect of the act or omission giving rise to the penalty.
Combination of sanctions
4     (1)
Provision may not be made under section 93 and section 95 conferring
10
powers on an enforcement authority in relation to the same offence unless it
secures that—
(a)
the authority may not serve a notice of intent referred to in section
94(2)(a) on a person in relation to any act or omission where a
variable monetary penalty has been imposed on that person in
15
relation to that act or omission, and
(b)
the authority may not serve a notice of intent referred to in section
96(2)(a) on a person in relation to any act or omission where—
(i)
a fixed monetary penalty has been imposed on that person in
relation to that act or omission, or
20
(ii)
the person has discharged liability to a fixed monetary
penalty in relation to that act or omission pursuant to section
94(2)(b).
      (2)
Provision under section 93 which results in an enforcement authority having
power to impose a fixed monetary penalty or to issue a stop notice in relation
25
to the same offence must secure that—
(a)
the authority may not serve a notice of intent referred to in section
94(2)(a) on a person in relation to any act or omission where a stop
notice has been served on that person in relation to that act or
omission, and
30
(b)
the authority may not serve a stop notice on a person in relation to
any act or omission where—
(i)
a fixed monetary penalty has been imposed on that person in
relation to that act or omission, or
(ii)
the person has discharged liability to a fixed monetary
35
penalty in relation to that act or omission pursuant to section
94(2)(b).
Monetary penalties
5     (1)
An order under section 93 or 95 which confers power on an enforcement
authority to require a person to pay a fixed monetary penalty or a variable
40
monetary penalty may include provision—
(a)
for early payment discounts;
(b)
for the payment of interest or other financial penalties for late
payment of the penalty, such interest or other financial penalties not
in total to exceed the amount of that penalty;
45
(c)
for enforcement of the penalty.
      (2)
Provision under sub-paragraph (1)(c) may include—

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4
252

(a)
provision for the enforcement authority to recover the penalty, and
any interest or other financial penalty for late payment, as a civil
debt;
(b)
provision for the penalty, and any interest or other financial penalty
for late payment, to be recoverable, on the order of a court, as if
5
payable under a court order.
Costs recovery
6     (1)
Provision under section 95 may include provision for an enforcement
authority, by notice, to require a person on whom a variable monetary
penalty is imposed to pay the costs incurred by the enforcement authority in
10
relation to the imposition of the penalty up to the time of its imposition.
      (2)
In sub-paragraph (1) the references to costs include in particular—
(a)
investigation costs;
(b)
administration costs;
(c)
costs of obtaining expert advice (including legal advice).
15
      (3)
Provision under this paragraph must secure that, in any case where a notice
requiring payment of costs is served—
(a)
the notice specifies the amount required to be paid;
(b)
the enforcement authority may be required to provide a detailed
breakdown of that amount;
20
(c)
the person required to pay costs is not liable to pay any costs shown
by the person to have been unnecessarily incurred;
(d)
the person required to pay costs may appeal against—
(i)
the decision of the enforcement authority to impose the
requirement to pay costs;
25
(ii)
the decision of the enforcement authority as to the amount of
those costs.
      (4)
Provision under this paragraph may include the provision referred to in
sub-paragraphs (1)(b) and (c) and (2) of paragraph 5.
      (5)
Provision under this paragraph must secure that an enforcement authority
30
is required to publish guidance about how it will exercise the power
conferred by the provision.
Appeals
7     (1)
An order under section 93 or 95 may not provide for the making of an appeal
other than to—
35
(a)
the First-Tier Tribunal, or
(b)
another tribunal created under an enactment.

This sub-paragraph does not apply in the case of an order made by the
Scottish Ministers.
      (2)
In sub-paragraph (1)(b)—
40
“enactment” includes an enactment contained in, or in an instrument
made under, Northern Ireland legislation;
“tribunal” does not include an ordinary court of law.

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4
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      (3)
An order under section 93 or 95 which makes provision for an appeal in
relation to the imposition of any requirement or service of any notice may
include—
(a)
provision suspending the requirement or notice pending
determination of the appeal;
5
(b)
provision as to the powers of any person to whom the appeal is
made;
(c)
provision as to how any sum payable in pursuance of a decision of
that person is to be recoverable.
      (4)
The provision referred to in sub-paragraph (3)(b) includes provision
10
conferring on the person to whom the appeal is made power—
(a)
to withdraw the requirement or notice;
(b)
to confirm the requirement or notice;
(c)
to take such steps as the enforcement authority could take in relation
to the act or omission giving rise to the requirement or notice;
15
(d)
to remit the decision whether to confirm the requirement or notice,
or any matter relating to that decision, to the enforcement authority;
(e)
to award costs.
Consultation
8     (1)
Before making an order under section 93 or 95, the appropriate licensing
20
authority must consult the following (in addition to any persons who must
be consulted under paragraph 9)—
(a)
the enforcement authority to which the order relates,
(b)
such organisations as appear to the licensing authority to be
representative of persons substantially affected by the proposals,
25
and
(c)
such other persons as the licensing authority considers appropriate.
      (2)
If, as a result of any consultation required by sub-paragraph (1), it appears
to the licensing authority that it is appropriate substantially to change the
whole or any part of the proposals, the licensing authority must undertake
30
such further consultation with respect to the changes as it considers
appropriate.
      (3)
If, before the day on which this Schedule comes into force, any consultation
was undertaken which, had it been undertaken after that day, would to any
extent have satisfied the requirements of this paragraph, those requirements
35
may to that extent be taken to have been satisfied.
Guidance as to use of civil sanctions
9     (1)
Where power is conferred on an enforcement authority under section 93 or
95 to impose a civil sanction in relation to an offence the provision conferring
the power must secure the results in sub-paragraph (2).
40
      (2)
Those results are that—
(a)
the enforcement authority must publish guidance about its use of the
sanction,
(b)
in the case of guidance relating to a fixed monetary penalty or a
variable monetary penalty, the guidance must contain the relevant
45
information,

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4
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(c)
the enforcement authority must revise the guidance where
appropriate,
(d)
the enforcement authority must consult such persons as the
provision may specify before publishing any guidance or revised
guidance, and
5
(e)
the enforcement authority must have regard to the guidance or
revised guidance in exercising its functions.
      (3)
In the case of guidance relating to a fixed monetary penalty, the relevant
information referred to in sub-paragraph (2)(b) is information as to—
(a)
the circumstances in which the penalty is likely to be imposed,
10
(b)
the circumstances in which it may not be imposed,
(c)
the amount of the penalty,
(d)
how liability for the penalty may be discharged and the effect of
discharge, and
(e)
rights to make representations and objections and rights of appeal.
15
      (4)
In the case of guidance relating to a variable monetary penalty, the relevant
information referred to in sub-paragraph (2)(b) is information as to—
(a)
the circumstances in which the penalty is likely to be imposed,
(b)
the circumstances in which it may not be imposed,
(c)
the matters likely to be taken into account by the enforcement
20
authority in determining the amount of the penalty (including,
where relevant, any discounts for voluntary reporting of non-
compliance), and
(d)
rights to make representations and objections and rights of appeal.
Guidance as to enforcement of offences
25
10    (1)
Where power is conferred on an enforcement authority under section 93 or
95 to impose a civil sanction in relation to an offence the enforcement
authority must prepare and publish guidance about how the offence is
enforced.
      (2)
The guidance must include guidance as to—
30
(a)
the sanctions (including criminal sanctions) to which a person who
commits the offence may be liable,
(b)
the action which the enforcement authority may take to enforce the
offence, whether by virtue of section 93 or 95 or otherwise, and
(c)
the circumstances in which the enforcement authority is likely to
35
take any such action.
      (3)
An enforcement authority may from time to time revise guidance published
by it under this paragraph and publish the revised guidance.
      (4)
The enforcement authority must consult such persons as it considers
appropriate before publishing any guidance or revised guidance under this
40
paragraph.
Publication of enforcement action
11    (1)
Where power is conferred on an enforcement authority under section 93 or
95 to impose a civil sanction in relation to an offence, the provision

Marine and Coastal Access Bill [HL]
Schedule 7 — Further provision about civil sanctions under Part 4
255

conferring the power must, subject to this paragraph, secure the result in
sub-paragraph (2).
      (2)
That result is that the enforcement authority must from time to time publish
reports specifying—
(a)
the cases in which the civil sanction has been imposed,
5
(b)
where the civil sanction is a fixed monetary penalty, the cases in
which liability to the penalty has been discharged pursuant to
section 94(2)(b), and
(c)
where the civil sanction is a variable monetary penalty, the cases in
which an undertaking referred to in section 96(5) is accepted from
10
such a person.
      (3)
In sub-paragraph (2)(a), the reference to cases in which the civil sanction has
been imposed does not include cases where the sanction has been imposed
but overturned on appeal.
      (4)
The provision conferring the power need not secure the result in sub-
15
paragraph (2) in cases where the appropriate licensing authority considers
that it would be inappropriate to do so.
Payment of penalties into Consolidated Fund etc
12    (1)
Where pursuant to any provision made under section 93 or 95 an
enforcement authority receives—
20
(a)
a fixed monetary penalty or a variable monetary penalty, or
(b)
any interest or other financial penalty for late payment of such a
penalty,

the authority must pay it into the relevant Fund.
      (2)
In sub-paragraph (1) “the relevant Fund” means—
25
(a)
in a case where the authority has functions only in relation to Wales,
the Welsh Consolidated Fund;
(b)
in a case where the authority has functions only in relation to
Scotland, the Scottish Consolidated Fund;
(c)
in a case where the authority has functions only in relation to
30
Northern Ireland, the Consolidated Fund of Northern Ireland;
(d)
in any other case, the Consolidated Fund.
Disclosure of information
13    (1)
Information held by or on behalf of a person mentioned in sub-paragraph (2)
may be disclosed to an enforcement authority on whom powers are
35
conferred under section 93 or 95 where—
(a)
the person has an enforcement function in relation to an offence, and
(b)
the information is disclosed for the purpose of the exercise by the
enforcement authority of any powers conferred on it under any of
those sections in relation to that offence.
40
      (2)
The persons are—
(a)
the Crown Prosecution Service,
(b)
a member of a police force in England or Wales,
(c)
a Procurator Fiscal,
(d)
a constable of a police force in Scotland,
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Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments
256

(e)
the Public Prosecution Service for Northern Ireland, or
(f)
a member of the Police Service of Northern Ireland.
      (3)
It is immaterial for the purposes of sub-paragraph (1) whether the
information was obtained before or after the coming into force of this
paragraph.
5
      (4)
A disclosure under this paragraph is not to be taken to breach any restriction
on the disclosure of information (however imposed).
      (5)
Nothing in this paragraph authorises the making of a disclosure in
contravention of—
(a)
the Data Protection Act 1998 (c. 29), or
10
(b)
Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23).
      (6)
This paragraph does not affect a power to disclose which exists apart from
this paragraph.
Schedule 8
Section 112(1)

Licensing: minor and consequential amendments
15
Part 1
Consequential amendments
The Coast Protection Act 1949
1     (1)
The Coast Protection Act 1949 (c. 74) is amended as follows.
      (2)
Omit Part 2 (provisions for safety of navigation).
20
      (3)
In section 49(1) (interpretation), in the definitions of “sea” and “seashore”,
for “subsections (2) and (2A)” substitute “subsection (2)”.
The Food and Environment Protection Act 1985
2     (1)
The Food and Environment Protection Act 1985 (c. 48) is amended as
follows.
25
      (2)
In section 5 (requirement for licences)—
(a)
in paragraph (a), for “United Kingdom waters or United Kingdom
controlled waters” substitute “the Scottish inshore region”;
(b)
omit paragraph (b);
(c)
in paragraph (e)(i), for “United Kingdom waters or United Kingdom
30
controlled waters” substitute “the Scottish inshore region”;
(d)
omit paragraph (e)(ii) and the preceding “or”;
(e)
in paragraph (f), for “the United Kingdom or United Kingdom
waters” substitute “Scotland or the Scottish inshore region”;
(f)
in paragraph (g), for “the United Kingdom” substitute “Scotland”;
35
(g)
in paragraph (h), for “the United Kingdom or United Kingdom
waters” substitute “Scotland or the Scottish inshore region”.
      (3)
In section 6(1) (requirements for licences for incineration at sea etc)—

Marine and Coastal Access Bill [HL]
Schedule 8 — Licensing: minor and consequential amendments
Part 1 — Consequential amendments
257

(a)
in paragraph (a)(i), for “United Kingdom waters or United Kingdom
controlled waters” substitute “the Scottish inshore region”;
(b)
omit paragraph (a)(ii) and the preceding “or”;
(c)
in paragraph (b), for “the United Kingdom or United Kingdom
waters” substitute “Scotland or the Scottish inshore region”.
5
      (4)
In section 7A (exclusion of Part 2 for certain purposes)—
(a)
in subsection (4), for paragraphs (a) and (b) substitute “the Scottish
inshore region.”;
(b)
omit subsection (5).
      (5)
In section 8 (licences)—
10
(a)
in subsection (4)(b), for “United Kingdom waters” substitute “the
Scottish inshore region”;
(b)
in subsection (6), omit “evidence, and in Scotland”.
      (6)
In section 9 (licensing offences)—
(a)
in subsection (1) (which is expressed to be subject to subsections (3)
15
to (7)) for “to (7)” substitute “, (4)”;
(b)
omit subsections (5) to (7).
      (7)
In section 11 (enforcement powers)—
(a)
in subsection (2)—
(i)
in paragraph (a), for “the United Kingdom” substitute
20
“Scotland”;
(ii)
for paragraphs (b) and (c) substitute—
“(b)
vessels, aircraft, hovercraft and marine structures in
Scotland or within the Scottish inshore region,”;
(b)
in subsection (3), for paragraphs (a) and (b) substitute “any vessel
25
within the Scottish inshore region”.
      (8)
In section 21 (offences) omit subsection (8).
      (9)
In section 24(1) (interpretation)—
(a)
omit the definition of “adjacent to Scotland”;
(b)
omit the definition of “Gas Importation and Storage Zone”;
30
(c)
in the definition of “licensing authority”—
(i)
omit paragraph (a);
(ii)
in paragraph (b)(i), for “United Kingdom waters, or United
Kingdom controlled waters, adjacent to Scotland” substitute
“waters within the Scottish inshore region”;
35
(iii)
in paragraph (b)(ii) and (iii), for “United Kingdom waters, or
United Kingdom controlled waters, adjacent to Scotland” in
each place where it appears substitute “the Scottish inshore
region”;
(iv)
in paragraph (b)(iii), omit “and the functions of that authority
40
under this sub-paragraph shall be treated as exercisable in or
as regards Scotland and may be exercised separately”;
(d)
after the definition of “plants” insert—
““Scottish inshore region” has the same meaning as in
the Marine and Coastal Access Act 2009 (see section
45
317 of that Act);”;